A battle is brewing over the fact that the Wireless Application Service Provider’s Association (WASPA) code of conduct allows its members to charge consumers to opt-out of direct SMS marketing. This is because the Consumer Protection Act (CPA) dictates that no fee may be charged for any opt-out.
The CPA states that consumers have the “right to restrict unwanted direct marketing”, which includes the right to “refuse to accept” and “require another person to discontinue”.
The CPA further states [in section 11, subsection (2)] that “a person who has been approached for the purpose of direct marketing may demand … that the person responsible for initiating the communication desist from initiating any further communication”.
“No person may charge a consumer a fee for making a demand in terms of subsection (2),” the CPA states.
With SMS marketing messages it means that consumers must be able to unsubscribe from SMS marketing messages without having to pay for the opt-out (STOP) SMS.
However, the WASPA code of conduct states that “For commercial messages, a message recipient must be able to opt out at the lowest tariffed rate available (with the exception of reverse billed rates).”
This means that WASPA’s code of conduct may be in contravention of the CPA which states that opt-out messages must be free.
To zero rate opt-out SMS can easily be achieved through using reverse billed codes. While some mobile operators are encouraging WASPs to use zero rated opt-out SMSs, WASPA is not enforcing it.
WASPA disputed that its code of conduct is in contravention of the CPA, arguing that it makes provision for the lawful conduct of its members. WASPA’s full response is provided below.
The WASPA code of conduct says the following:
3.1.2. Members are committed to lawful conduct at all times.
14.4.1. An adjudicator finding prima facie evidence that any member may have breached clause 3.1.2 of the Code of Conduct must request that WASPA refer the breach to the relevant statutory or regulatory authority, unless that authority has already made a ruling on that particular case. If the relevant authority has already made a ruling on that particular case, then the adjudicator may find a breach of clause 3.1.2.
Therefore WASPA members are required to obey the CPA and breach of the CPA should be referred to the National Consumer Commission to be dealt with accordingly.
In terms of the particular section 5.1.4 in the WASPA Code relating to opt out rates and mechanisms, this clause relates to subscription service opt out and bulk advertising-type messages opt out, the latter of which could be sent to a subscriber via, for example, SMS, IVR, or email. WASPA believes that this clause is compliant with the CPA as it refers to the “lowest tariffed rate available” and any free mechanism could of course be the lowest tariffed rate.
Although there is not yet ubiquitous (free) reverse-billed SMS availability across all mobile operators in South Africa as only some mobile operators provide a free or zero-rated SMS to be used for opting out of receiving further messages, there are however non-SMS mechanisms available that can be used across all mobile operators to allow recipients of message to opt out for free from receiving further messages.
This zero cost mechanism complies then with the “lowest tariffed rate available” requirement in terms of 5.1.4 of the WASPA Code and the free opt-out injunction in the CPA. Recipients could also email an opt-out request if needed.
In the absence of common zero-rated SMS short codes across all mobile operators that message recipients can use to opt out for free from receiving further messages, WASPA encourages WASPs to implement alternative and innovative systems available to provide the free opt-out, and where a zero-rated free reply SMS is made available by some mobile operators, to also use this facility to comply with 5.1.4 of the WASPA Code and the free opt-out provisions of the CPA.